Mealey's Elder Law

  • January 17, 2020

    U.S. High Court Requests Supplemental Briefs In Federal Sector Age Bias Suit

    WASHINGTON, D.C. — The U.S. Supreme Court this afternoon directed parties in an age bias case concerning the Age Discrimination in Employment Act’s (ADEA) federal sector provision to file supplemental letter briefs concerning the available administrative or judicial relief available beyond the ADEA (Noris Babb v. Robert Wilkie, No. 18-882, U.S. Sup.).

  • January 16, 2020

    City, County Maintain They Should Be Immune From Liability In Retirement Suit

    SACRAMENTO, Calif. — The city and county of San Francisco, a retirement board and an employees’ retirement system tell the California Supreme Court in a Jan. 9 reply brief that it should review an appeals court’s ruling that reinstated a former public worker’s lawsuit claiming that a formula that calculates retirement benefits discriminates against individuals who are hired after age 40, asserting that they should be immune from liability (Joyce Carroll v. City and County of San Francisco, et al., No. S259558, Calif. Sup.).

  • January 16, 2020

    Michigan Panel Affirms Senior Living Facility Owed Resident No Duty Of Care 

    DETROIT — A Michigan Court of Appeals panel in a Jan. 14 unpublished opinion affirmed the grant of summary judgment to the operators of an unlicensed senior living facility in a negligence case, finding that they did not owe a duty of care to a resident to monitor the side exits of the facility, through which the woman exited in her nightgown, locking herself out in frigid temperatures (Estate of Virginia Kermath v. Independence Oxford, LLC, et al., No. 345640, Mich. App., 2020 Mich. App. LEXIS 245).

  • January 16, 2020

    U.S. High Court Won’t Take Up Pro Se Appeal By Man Seeking To Represent Estate

    WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 13 denied a pro se petition for a writ of certiorari filed by an Ohio man challenging an Ohio appellate court’s ruling that he may not bring wrongful death and survival claims on behalf of his deceased mother’s estate without counsel (Jeffrey Wills Lusk v. Crown Pointe Care Center, et al., No. 19-543, U.S. Sup.).

  • January 15, 2020

    U.S. Supreme Court Hears Arguments On Federal Sector Age Bias

    WASHINGTON, D.C. — The federal sector provision of the Age Discrimination in Employment Act (ADEA) bars “discrimination not only in the ultimate outcome of a personnel decision but also in the process of making that decision,” an attorney representing a U.S. Department of Veterans Affairs (VA) pharmacist argued on Jan. 15 before the U.S. Supreme Court (Noris Babb v. Robert Wilkie, No. 18-882, U.S. Sup.).

  • January 15, 2020

    Minnesota Panel Affirms Validity Of Nursing Home Resident’s Self-Proved Will

    ST. PAUL, Minn. — An elderly nursing home resident’s self-proved will is valid, a Minnesota appellate panel held in a Jan. 13 unpublished opinion, rejecting his nephew’s claims that the will was invalid because the nursing home allowed non-immediate family members to visit the resident and that the resident lacked testamentary capacity (In re the estate of:  Norman Sebert Larson, No. A19-0261, Minn. App., 2020 Minn. App. Unpub. LEXIS 16).

  • January 13, 2020

    U.S. High Court Will Address Judicial Review Of Railroad Retirement Board Decisions

    WASHINGTON, D.C. — The U.S. Supreme Court on Jan. 10 agreed to review whether the U.S. Railroad Retirement Board’s decision to deny reopening a man’s request for benefits under the Railroad Unemployment Insurance Act (RUIA) and Railroad Retirement Act (RRA) is subject to judicial review (Manfredo M. Salinas v. U.S. Railroad Retirement Board, No. 19-199, U.S. Sup.).

  • January 08, 2020

    Illinois Panel Affirms Court Reliance On Late Affidavit In Nursing Home Lawsuit

    CHICAGO — An Illinois appellate panel on Dec. 16 affirmed a lower court that denied a motion to compel arbitration of Survival Act claims against a nursing home after it allowed the plaintiff to submit a new affidavit from an expert witness indicating that an elderly resident was not competent to sign an arbitration agreement (Michael A. Rigoli v. Manor Care of Oak Lawn [West] IL, LLC, No.19-1635, Ill. App., 1st Dist., 2019 Ill. App. LEXIS 969).

  • January 08, 2020

    Illinois Appellate Panel Rules Separated Spouse Can’t Reclaim Ceded Heirship

    ELGIN, Ill. — An Illinois appellate panel on Dec. 23 held that a couple’s legal agreement of separation prevented a surviving spouse from claiming a spousal award or rights as heir after one party died, reversing a lower court’s finding that the agreement entitled the surviving spouse to inherit the decedent’s property acquired post-separation (In re estate of Catherine A. Holms [James Holms v Tracy Batdorf], No. 2-19-0139, Ill. App., 2nd Dist.).

  • January 07, 2020

    County-Owned Nursing Home Not Wholly Immune To Liability Claims, Appellate Court Rules

    ELGIN, Ill. — A county-owned nursing home sued over the injury of an elderly patient can  claim immunity only from certain failure to supervise claims, not from all negligence claims under the state Nursing Home Care Act, an Illinois appellate panel held Dec. 20 in a partial reversal of the trial court’s ruling (Arthur Sablik v. The County of De Kalb, No. 19-0293, Ill. App., 2nd Dist., 2019 Ill. App. LEXIS 987).

  • January 07, 2020

    5th Circuit Says Retiree Can’t Prove Age Discrimination, Affirms Summary Judgment

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Dec. 13 affirmed summary judgment for an employer in an age discrimination lawsuit, ruling in an unpublished per curiam decision that the employee, who claimed that he was forced to retire due to his age, failed to show that his retirement was a pretext for discrimination (Paul Tagliabue, Jr. v. Orkin, L.L.C., No. 18-40691, 5th Cir., 2019 U.S. App. LEXIS 36971).

  • January 07, 2020

    Elderly Woman’s Siblings Tell High Court That Judge Violated Due Process

    WASHINGTON, D.C. — Three siblings seeking review of the denial of their request to remove their 99-year-old sister’s court-appointed guardian tell the U.S. Supreme Court in a Dec. 12 petition for writ of certiorari that a New York state judge violated their sister’s due process rights under the Fifth and 14th Amendments to the U.S. Constitution when reaching the decision without hearing from witnesses or allowing her to be represented by counsel (In the Matter of the Guardianship of Ida M., No. 19-773, U.S. Sup., 2019 U.S. S. Ct. Briefs LEXIS 7561).

  • January 06, 2020

    7th Circuit Denies Rehearing After Finding Vested Lifetime Benefits For Retirees

    CHICAGO — A Seventh Circuit U.S. Court of Appeals panel on Jan. 3 denied a petition for rehearing or rehearing en banc filed by employers ordered to continue providing health insurance benefits for retirees and their families (Harold Stone, et al. v. Signode Industrial Group LLC, et al., No. 19-1601, 7th Cir., 2020 U.S. App. LEXIS 132).

  • January 02, 2020

    Oklahoma High Court Reinstates Judgment Against Nursing Home For Patient Death

    OKLAHOMA CITY — The Oklahoma Supreme Court on Dec. 17 vacated an appellate court opinion affirming the vacating of a $3 million default judgment in a wrongful death lawsuit against a nursing home, reversed the trial court as to liability and ordered a new trial on damages, finding that the nursing home counsel’s failure to learn of and respond to the original petition did not constitute an “unavoidable casualty or misfortune” that would have justified vacating the judgment (Ryan Williams v. Meeker North Dawson Nursing, LLC, No. 115,360, Okla. Sup., 2019 Okla. LEXIS 83).

  • December 20, 2019

    Employers Seek Rehearing After Panel Finds Vested Lifetime Benefits For Retirees

    CHICAGO — Employers ordered by the Seventh Circuit U.S. Court of Appeals to continue providing health insurance benefits for retirees and their families filed a petition for rehearing or rehearing en banc on Dec. 18, arguing that the panel erred in reading the contract and that the ruling “runs afoul of decades of this Circuit’s precedent” (Harold Stone, et al. v. Signode Industrial Group LLC, et al., No. 19-1601, 7th Cir.).

  • December 18, 2019

    Doctor’s Conviction For Health Care Fraud Involving 5 Elderly Patients Upheld

    NEW ORLEANS — A Fifth Circuit U.S. Court of Appeals panel on Dec. 16 affirmed a doctor’s conviction for one count of conspiracy to commit health care fraud and five counts of health care fraud for submitting false bills for treatment of five elderly patients with dementia, as well as a federal judge’s decision to sentence him to 150 months in prison, holding that the evidence presented during trial was sufficient (United States v. Riyaz Mazkouri, No. 18-20650, 5th Cir., 2019 U.S. App. LEXIS 37167).

  • December 18, 2019

    U.S. High Court Agrees To Take Up 2 Ministerial Exception Appeals

    WASHINGTON, D.C. — The U.S. Supreme Court  on Dec. 18 granted petitions in two cases seeking clarification of the First Amendment to the U.S. Constitution’s “ministerial exception” as applied to age and disability bias lawsuits, consolidated them and granted a total of one hour for oral argument (St. James School v. Darryl Biel, No. 19-348; Our Lady of Guadalupe School v. Agnes Morrissey-Berru, No. 19-267, U.S. Sup.).

  • December 17, 2019

    New York Jury Awards $2.98 Million Against Nursing Home For Negligence

    NEW YORK — A New York jury on Dec. 12 awarded $2.98 million in compensatory damages to a widow for injuries her husband suffered as a result of a nursing home’s failure to monitor his condition and timely transfer him to a hospital (Frederick Smith, by and through Carolyn Lundy Smith v. Northern Manhattan Nursing Home Inc., No. 805104/2014, N.Y. Sup., New York Co.).

  • December 17, 2019

    United States: Pharmacy Fraudulently Refilled Long-Term Care Prescriptions

    NEW YORK — The U.S. Justice Department on Dec. 17 intervened in a whistleblower lawsuit alleging that long-term care pharmacy Omnicare Inc. fraudulently refilled prescriptions without physician authorization, sometimes for years (United States, et al, ex rel. Uri Bassan v. Omnicare, Inc., No. 15-4179, S.D. N.Y.).

  • December 17, 2019

    New York Justice Finds Hospital Falsely Imprisoned Elderly Patient

    NEW YORK — Finding that a hospital was liable as a matter of law for falsely imprisoning an elderly patient, a New York justice on Dec. 10 set aside a jury’s verdict in favor of a hospital, entered judgment in favor of the woman’s estate and ordered a trial to be held on damages (Dorothy Eng v. NYU Hospitals Center, No. 156810/2014,  N.Y. Sup., New York Co., 2019 N.Y. Misc. LEXIS 6543).